The Boundaries of Constitutional Amendment

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. It intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment in terms of what it is and what it is not, with illustrations drawn from around the globe. This chapter considers constitutions from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.

Introduction

What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.

Why Amendment Rules?

Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all because they have essential uses beyond the obvious one of textual alteration. Amendment rules have three categories of uses: formal, functional, and symbolic. Their formal uses include repairing imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change. Their functional uses include checking the court, promoting democracy, heightening public awareness, pacifying change, and managing difference. Symbolically, amendment rules can be used to express constitutional values. This chapter explains all of these many uses of amendment rules and illustrates each of them with examples drawn from constitutions around the world. This chapter also interrogates the symbolic uses of amendment rules: How can we know whether the values expressed in constitutional amendment rules reflect authentic political commitments? This chapter explains with reference to the German Basic Law that it is possible to evaluate the authenticity of the values in amendment rules by investigating the design of amendment rules and their subsequent interpretation. This chapter considers constitutions from Afghanistan, Albania, Algeria, Bosnia and Herzegovina, the Central African Republic, Chad, China, Cuba, Ecuador, Germany, Kazakhstan, Kiribati, Saint Lucia, South Africa, Spain, the Russian Federation, the Soviet Union, Ukraine, the United States, and Yugoslavia.

Measuring Amendment Difficulty

Which constitution is the world’s most difficult to amend? Scholars of comparative constitutional law almost uniformly have the same answer: the U.S. Constitution. It has been amended relatively few times since its creation in 1787, thousands of amendment proposals have failed, and today it seems virtually impossible to amend. Is this enough to prove that the U.S. Constitution is the hardest to amend? This chapter examines rankings of amendment difficulty that focus on the codified rules of amendment, and concludes that none of them is a reliable ordering of relative rigidity and moreover that all of them have a fatal flaw: they fail to account for nontextual sources of amendment ease or difficulty. These nontextual sources include uncodified changes to formal amendment rules, popular veneration for the constitution, temporal variability in amendment difficulty, and prevailing cultures of amendment. The chapter shows that three different cultures of amendment can either exacerbate or assuage amendment difficulty: amendment culture as an accelerator of change, as a redirector of change, and as an incapacitator of change. This chapter also illustrates how and theorizes why formal amendment rules are sometimes modified in ways that ultimately remain invisible to scholars who take a narrow text-based approach to measure amendment difficulty. The chapter concludes both that rankings of amendment difficulty are doomed to failure and that they may not be worth the effort. This chapter considers constitutions from around the globe.

Conclusion

There are presently too few resources to guide constitutional designers in building the rules of constitutional amendment. This chapter offers a roadmap for designing constitutional amendment rules. As is true of building an edifice, constructing the rules of constitutional change requires careful thought about design and operation. This chapter explains that amendment rules are organized around four sets of fundamental choices requiring designers to set the foundations of the polity, to choose among pathways to initiate, propose and ratify an amendment, to select specifications that will put the foundations and pathways into operation, and finally to determine how and where amendments will be recorded. This chapter also explains that formal amendment as a practice reflects the democratic values of the rule of law, including predictability, transparency, and publicity. There are of course advantages to informal amendment and methods of change that violate the codified rules of change, but there are even greater democracy-enhancing virtues that are possible only with formal amendment. This chapter considers constitutions from Austria, Costa Rica, Great Britain, India, Ireland, Spain, Switzerland, and the United States.

The Architecture of Constitutional Amendment

Constitutional amendment rules were once very simple in their design. A constitution codified a one-size-fits-all procedure for amendments to any part of the constitution, and that was it. Today, amendment rules are considerably more complex in their design and in the possibilities they offer constitutional designers for structuring their rules of constitutional change. This chapter examines the architecture of constitutional amendment, specifically the options available to constitutional designers to build their own rules of change. This chapter also weighs the strengths and weaknesses of these options and offers some guidance on when one choice may be better than another. This chapter compares single-track and multi-track pathways in constitutional amendment, single-subject and omnibus amendment bills, and procedures for amendment and dismemberment. This chapter also explains why codified unamendability is problematic for democracy and suggests an alternative design that can achieve the expressive function of unamendability while not denying the fundamental right of amendment. This chapter moreover examines the important relationship between time and change, namely how constitutional designers can use and manipulate time in their design of amendment rules. Finally, this chapter explores judicial review of constitutional amendments, beginning first by explaining eight strategies a court can use to invalidate an amendment and then elaborating several alternatives to the judicial invalidation of constitutional amendments. What results is a deep dive into the design of amendment rules. This chapter considers constitutions from around the globe.

Finding Constitutional Amendments

Constitutional designers rarely ask many questions they should. How and where will the constitution indicate that it has been amended? Will it record the change at the end of the original constitution, or will the change be inserted directly into the founding text? And what about an uncodified constitution: How will it identify constitution-level changes? This chapter offers the first analysis into the options available to constitutional designers for codifying constitutional amendments. This chapter identifies and illustrates the four major models of amendment codification in the world: the appendative model in the United States, the integrative model in India, the invisible model in Ireland, and the disaggregative model in Great Britain. How and where to memorialize changes to the constitution entails implications for how interpreters of constitutional meaning will read the constitution in the course of adjudication, whether the constitution will become a focal point of reference in constitutional politics, and how intensely citizens will venerate their constitution. The way amendments are recorded is ultimately a choice about how and indeed whether a people chooses to remember its past. Today constitutional designers do not consider the consequences of amendment codification, but they should. This chapter explains why the choices involved in amendment codification concern more than mere aesthetics. This chapter considers constitutions from Canada, Great Britain, India, Ireland, Israel, Mexico, New Zealand, Norway, Saint Lucia, Spain, and the United States.

The Three Varieties of Unamendability

Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.